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It is accepted wisdom that Americans place a premium on private spaces, at the expense of public space. Europeans are known to scorn Americans' lack of spaces, such as the Italian piazza, or public square, in which residents stroll at lunch or in the evening, and see and be seen, in the heart of the city or town. Such spaces don't exist much in America, both because of our 20th-century subservience to the automobile, and the lack of both social and governmental respect for such public spaces. To paraphrase humorist P.J. O'Rourke, anything that is "public" becomes dirty and unpleasant.

So is it quite a surprise, therefore, that my old hometown, Silver Spring, Maryland, has come up with, almost accidentally, a fairly successful public "piazza." Just adjacent to the highly regulated outdoor downtown mall (see my July 5 entry) is a plot, about half the size of a city block, that has been covered by artificial grass for a couple of years. (See CKIvey's photo at left.) One can toss a ball, one can sit down with a sandwich from a nearby shop, or one can simply walk along the grass and look at the neon lights of the stores nearby. The plan was to keep the spot vacant simply while the government decided what to do with it. (Current plans include a skating rink.) This highly unregulated spot -- across the street from a popular movie theatre complex -- surely caused some concern among local authorities. This might especially be true because Silver Spring is ethnically very diverse (some Americans suggest that European public realms are more successful because of the homogeneity of European culture). With large numbers of Silver Spring's whites, blacks, Latinos, and Asians mixing together on weekend nights -- heavily skewed toward teenagers and young people -- surely this space would mean trouble, yes?

But it appears to be working. Especially in evenings, when the green space is packed with people, there appears to be little trouble, and a lot of life. In fact, the artificial grass -- which surely would cause noses to turn up among educated planners -- appears to be a fine choice. It is both more pleasant to look at than concrete, is safer to fall down on as a playing kid, withstands rain and drought, is a fairly easy to clean up. The little green space is so successful that many residents are lamenting the plan to eventually get rid of it. A big blank space in the middle of a city -- Who would have thought that it would be such a successful amenity? Well, centuries of European city designers, that's who ….

Independence Day gives one thoughts of history and family, and with this notion I present the 2007 version of "Hometown Week." I'm spending much of the summer near my old hometown of Silver Spring, Maryland, which, coincidentally, is experiencing many of the important land use law debates that swirl around our nation. Silver Spring is a large unincorporated blob (typical under Maryland law) that includes high-density urban areas, low-density exurban tracts, some very wealthy areas, some quite poor neighborhoods, and a true diversity of cultures -- "America in miniature," as Maryland once used to label itself.

In the past few weeks, Silver Spring has been at the center of a controversy concerning the privatization of public space. A couple of years ago, the county government used millions of taxpayer dollars to "revitalize" the old urban retail downtown with a new development project of chain stores and restaurants -- a move of which I was critical, even though it has been successful in bringing many more people back to the old downtown. The outdoor development area -- unimaginatively called "downtown Silver Spring" -- stretches for about two blocks, mainly along Ellsworth Drive, a venerable old street just a block off of what used to be Silver Spring's main drag.

But is Ellsworth Drive now public or private? The controversy sprung into the news when a local man began to take photos, only to be stopped by a security guard of the development company that runs the new retail area. The company interprets its contract with the county government as allowing it to control nearly all activity in the area, even in spots that would appear to the average uninformed citizen to be public property. Here are articles from the Washington Post, first on the photo incident, then on the development company's revision of its policy, and a July 4 update.

This controversy opens the large can of worms concerning the privatization of public property, both by government and private initiative. Courts have been inconsistent in their decisions as to whether public rights vis-à-vis government (such as the right to protest and hand out leaflets) apply in the new private-owned public spaces, such as shopping malls, that have largely replaced public streets and squares. Then there is the issue of the "public trust" doctrine, through which courts sometimes limit the ability of government to privatize public areas, such as navigable waters. The most infamous case was when the Illinois legislature in effect transferred much of the Chicago waterfront to a railroad in the 19th century. Some public advocates contend that government should not be able to "privatize" public places such as Ellsworth Drive.

My suggestion here is less "rights" oriented than practically oriented. I do not necessary look with horror at the leasing or selling to private developers of once-public spaces. But when government does so, it should place in the contracts, leases, and deeds certain conditions to reserve public rights. One such right could be the right of persons to engage in certain (maybe not all) first amendment activities on the property. Other retained rights would try to make the privatized spaces more public-spirited, by retaining with the government the overseeing and regulating of activities, such as the cost and selection of food and other services in places such as airports and sports venues. This is the great thing about contracts -- government can grant to the private sector the duties of operation, while retaining to the public some of its traditional rights. It may not be mandated by the federal or state constitutions, but it is land use good policy nonetheless.

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Editors

Craig Anthony Arnold

Boehl Chair in Property and Land Use Professor of Law
Affiliated Professor of Urban Planning
Ph.D. Faculty in Urban and Public Affairs
Chair of the Center for Land Use and Environmental Responsibility,
University of Louisville